Challenging a Will after probate – is it possible? The short answer is yes. However, it’s important to remember that contesting a Will after probate can be more difficult and costly than doing so before probate is granted. This is why it’s crucial to act quickly.
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Can A Will Be Contested After The Estate Has Been Distributed?
Yes, you are able to contest a will even after the estate has been distributed. However, this may prove practically difficult to achieve, especially if the assets have already been distributed.
In this circumstance, you can legally attempt to recover the assets from any beneficiaries. Many difficulties could arise, however, such as if the beneficiaries have spent the money or if the beneficiaries no longer have the money to settle the court costs. For these reasons, you are advised to challenge the will before the grant of probate is issued.
Is There A Time Limit For Contesting A Will?
In general, contested probate time limits vary upon the nature of each claim, governed under the Limitation Act 1980. However, as mentioned above, it is advisable to act as quickly as possible before the grant of probate is issued, to avoid further complications. The general time limits for contesting a will are as follows:
- Inheritance Act claim – 6 months from the grant of probate
- Rectification claims – 6 months from the grant of probate
- Beneficiary making a claim against the will – 12 years from the date of death
- Fraud/claiming against an executor for appropriating estate assets – No time limit applies
In the case of making a claim for reasonable financial provision, there remains a time limit of six months from the grant of probate being issued.
This is because it’s easier to notify the executor(s) of the will of a claim before anything is distributed. If a will may be invalid, a ‘caveat’ can be entered against the state to prevent a Grant of Probate being issued.
It is technically possible to contest a will after probate has been granted, but this can result in practical difficulties if assets have already been distributed.
Someone can challenge your probate application (‘enter a caveat’) if there’s a dispute, for example about a will or who can apply for probate.
They have to enter the caveat before probate is granted.
The caveat lasts for 6 months at first, then it can be extended for another 6 months. The caveat stops all applications for probate on the estate being granted during that time.
- Rectification claims: 6 months from the date of grant
- Beneficiary making a claim against the Will: 12 years from date of death
- Fraud/claiming against an executor for appropriating estate assets: No time limit applies
- Rectification claims: 6 months from the date of grant
- Beneficiary making a claim against the Will: 12 years from date of death
- Fraud/claiming against an executor for appropriating estate assets: No time limit applies
A caveat is a notice to request someone to suspend a specific action. In estate administration, it’s used to prevent a grant of representation – usually a grant of probate (where there is a will)
A caveat is most commonly used in probate where there is concern about the validity of the deceased person’s will. The caveat will stop someone from obtaining a grant and administering the estate while those concerns are being investigated.
This will then allow the beneficiaries (the persons receiving assets) to take time to digest what has happened, to receive and consider legal advice, and to make investigations. This can include obtaining information from the solicitors who prepared the will and obtain medical records or evidence from witnesses.
A caveat is also sometimes used to prevent a grant of representation being obtained where there is a dispute as to who should apply for the grant or if there are concerns that the executor (the person named in the will to deal with the estate) is not suitable and their removal is being considered.
Must be 18 or over and live in England and Wales, and you can do it yourself without the assistance of a solicitor. You can either:
- apply online
- fill in form PA8A and send or take it to any district probate registry
You will need to know the full name, date of death and last known address of the person who has died. It costs £3 to enter a caveat.
What Happens Once A Probate Caveat Has Been Entered?
When a caveat is entered, nobody is automatically notified but the person applying for a grant will be informed of the caveat when they make their application. In this situation, they may then decide to allow a reasonable time period for the person who made the caveat to make their enquiries. However, the person applying for a grant may decide to ‘warn off’ the caveat (see below).
If there is a reason why a grant is needed urgently in order to protect or preserve assets (for example, to allow a property sale to take place or to stop high interest accruing on an equity release scheme) then a limited grant can be obtained to allow the executors to collect in assets, pay liabilities etc, but not to distribute the estate (and potentially dissipate assets).
How Long Does A Probate Caveat Last?
Once entered, the caveat will remain in place for 6 months. However, it can be renewed every 6 months thereafter:
- If you do want to renew the caveat, you should complete form PA8B and send it to HMCTS Probate in the month before it’s due to expire. A further fee will be payable.
- If the caveat is not renewed, it will automatically cease and any pending or new application for a grant (or application made thereafter) will be processed.
If at any time the person who entered the caveat wants it to be removed, a simple letter to the probate registry requesting its withdrawal should be enough to allow the estate to be administered.
It should be noted that it’s an abuse of process to enter or leave in place a caveat without legitimate reason. If, however, there remains cause for concern then steps should be taken to obtain legal advice and potentially pursue a contentious probate claim.
Can You Challenge A Probate Caveat?
The person applying for a grant may decide immediately, or after a reasonable time period has expired, that the caveat should no longer reasonably be in place. In those circumstances, a formal document known as a warning can be issued to the person who made the caveat by the person applying for a grant to try and remove it. Once served with the warning, the person who made the caveat has 14 days to enter an appearance (a formal document, not a physical appearance) – this will keep the caveat in place.
If an appearance is entered, then the caveat will be permanent and can only be removed with the consent of the parties or by an order of the court. If no appearance is entered within the 14 day time period, then the person who issued the warning will need to prepare an ‘affidavit of service’ of the warning to arrange for the caveat to be removed by the probate registry to allow the grant application to proceed.
Both the warning and the appearance cost nothing to issue or enter, however there are costs consequences for both parties if the court considers that either party has acted unreasonably. If an appearance is entered and the caveat needs to be removed by court order, and if either party has instructed a legal representative, then there may be costs consequences relating to the legal fees incurred. Courts will not tolerate caveats being entered or being left in place on false grounds; likewise, they will penalise unreasonable warnings:
- In the recent case of Elliott v Simmonds [2016] EWHC 732 (Ch), the person who entered the caveat faced liabilities in excess of £100,000 after allowing her caveat to remain in place despite having all the documents which proved her will validity claim had no merit.
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